VOTING IN A PANDEMIC: THE EFFECTS OF COVID-19 ON AMERICA'S ELECTIONS.

• Author: Griffith, Benjamin E.

1. INTRODUCTION

   The United States of America has had a big year in 2020, facing a global pandemic, an economic recession, and a social justice movement aimed at ending racism and police brutality. With respect to the coronavirus pandemic, the country faces the problem of reconciling the right to vote and our in-person voting system with the need to vote at a distance. Unfortunately, most states are ill prepared to handle their 2020 primary elections, let alone the 2020 presidential election through remote voting means. The expectation is that mail delays, voting delays, and slow electoral, judicial, and legislative systems will get in the way of the changes necessary to protect the health of American voters and their right to vote.

   It may be particularly helpful for states to look back, as we do here, to America's prior experiences with pandemic voting from the past century, the past decade, or the primary elections that have already been conducted during this pandemic. This could allow states to explore potential pitfalls and solutions to preserving the dignity of the 2020 presidential election. What is true of all these past experiences is that action is required immediately to adequately prepare for November and an election of historic proportions.

2. PAST PANDEMIC ELECTORAL EXPERIENCE

   COVID-19 is not the first pandemic or epidemic that the United States has had to weather while also juggling major elections, but pandemic voting is not so common that it has caused states to have thorough plans for the situation.

   However, the United States has handled elections in the midst of major health emergencies, meaning that it can pull from past experience to succeed in the 2020 presidential election, as well as other races held during the extent of the coronavirus pandemic.

   1. 1918 MIDTERM ELECTION AND THE SPANISH FLU

      In the fall of 1918, the United States was in the throes of another pandemic caused by the Spanish flu. By this time, the spring's first wave had subsided, only to bring a much deadlier second wave that killed approximately 150,000 people in October 1918 alone. Much like the coronavirus pandemic, officials employed social distancing and masking to fight the flu long enough to allow scientists the time to develop a vaccine.(1)

      The country was also in the midst of World War I and on the verge of an allimportant midterm election that saw Democrats attempting to keep congressional control during the final stretch of the war. In November, portions of the country were experiencing different levels of infection, with the western states in the middle of increased outbreaks and the eastern states starting to relax restrictions and reopen.(2)

      The election itself was handled in a variety of ways by the local authorities charged with conducting elections. Voting by mail was not yet a popular option, so in-person voting ruled the day. In San Francisco, voters were encouraged to wear masks at the polls. In other places, poll workers refused to work, as they were either ill or feared catching the virus themselves. Other polling places employed security in order to maintain capacity restrictions, while still other places moved voting stations outside to increase air flow.(3)

      The ultimate outcome led to a Republican victory in Congress, but a defeat in turnout figures. Compared to the 1914 midterm election which saw a turnout of fifty percent of eligible voters, the 1918 election saw an approximate forty percent turnout. The flu was not the only factor to blame for the low turnout, as approximately two million men were enlisted, taking away a large portion of the voting-age population.

      The flu and the lifting of some social distancing restrictions, however, were to blame for an increase in infections and deaths that followed election day and the days of celebration following the end of World War I just five days later.4 While it was difficult to associate outbreaks with election day in some areas, rural areas, where the flu had been held at bay by social distancing and quarantine procedures, saw increased cases directly after restrictions were lifted to enable the vote.(5)

      What we can learn from the 1918 midterm election are lessons we are already learning in this pandemic: wear a mask, practice social distancing, and quarantine those that are ill. What we can also learn is to expand upon a current system that wasn't yet available: voting by mail. Many states have already taken to this ballot medium, but others still have time to catch on and attempt to prepare in advance of November. The ideology that voting by mail increases the likelihood of voter fraud is seemingly unfounded, where cases of such fraud are virtually nonexistent and fail to support forgoing mail-in ballots over protecting the general health and welfare of voters.(6) In fact, voters in Nevada alleged that an all-mail-in election violated their constitutional rights. They alleged that it could lead to an increase in voter fraud. Those voters were denied any injunctive relief based on a failure to establish particularized standing on injuries caused by speculative voter fraud.(7)

   2. 2009 SWINE FLU PANDEMIC

      On a smaller scale, but a pandemic scale nonetheless, an outbreak of the H1N1 influenza virus, more commonly called the swine flu, ravaged the United States in 2009, including November 2009, when some states and cities were holding elections.(8) Election officials attempted to control the spread of this swine flu by first focusing on hygiene, through the increased use of hand sanitizers at polling locations. Some also employed implements to prevent voters from touching voting equipment that generally required a finger to select a candidate.(9)

      States also focused on sanitation and the routine cleaning of voting equipment, as well as the use of masks and gloves. Social distancing also made an appearance, with voting equipment strategically located to extend distance between voters. The use of absentee ballots was also encouraged, especially for those voters experiencing flu symptoms.(10)

      Much like its deadlier Spanish flu cousin, the swine flu caused states to learn lessons on how to conduct a safe election while preserving the vote. Once again, fear of illness spurred a push towards absentee and mail-in voting. However, we are now in the midst of a more active election year with presidential and congressional seats at issue. Thus, in-person voting, even if done in a safe manner like during the swine flu pandemic, does not appear to be the optimal solution when other alternatives exist, or at least should exist, in all states.

3. COVID-19 AND THE CURRENT ELECTORAL LANDSCAPE

   The coronavirus and COVID-19 fall somewhere closer to the Spanish flu, with millions of confirmed cases in the United States and a death rate climbing into the multiple hundreds of thousands each day.'' The virus is also the same as its predecessors: spread through close contact and especially deadly to those with preexisting health conditions and the immunocompromised.

   Expanding on the similarities, COVID-19 elections and the precautions, pitfalls, and solutions already being seen in the early elections under this pandemic mirror the solutions attempted during the earlier examples. However, other solutions are starting to emerge, including increased voting by mail, expanded absentee voting, and the delay of elections. Only time will tell if these new solutions fair better in preserving the right to vote, but the following discussion offers a glimpse into their success, or lack thereof, thus far. Specifically, this paper explores how the COVID-19 pandemic affected primary voting in several states through election delays, election cancellations, absentee qualifications based on immunity, absentee ballot notarizations, and reductions in poll locations.

   1. THE FIGHT FOR THE WISCONSIN PRIMARY: ABSENTEE BALLOT RETURN WINDOWS AND ATTEMPTS TO DELAY

      In one of the most telling election fights during this pandemic, Wisconsin saw its absentee system bombarded prior to the 2020 presidential primary election, with return deadlines extended, modified, and limited in the few days leading up to that election. It also saw its governor attempt to delay the election for a month, only to be struck back by the state legislature and courts. The following section details the fights that occurred in Wisconsin state and federal courts and how they ultimately affected the April 2020 primaries facing the state.

      1. Federal Litigation on Absentee Ballots

         While the country was grappling with the emerging coronavirus pandemic in late March 2020, Wisconsin was also grappling with how to conduct its April 7, 2020 primary election in the face of the easily transmitted virus. In an effort to protect citizens, Wisconsin Governor Evers entered an emergency order advising Wisconsinites to stay at home in order to flatten the curve.(12)

         With an eye on the approaching election and understanding that in-person voting was becoming potentially dangerous, many Wisconsin officials encouraged voters to vote via absentee ballot, resulting in a "significant uptick in absentee ballot requests."(13) This significant increase created a backlog in election officials' ability to review the applications and send out the requisite absentee ballots, especially where the U.S. Postal Service was experiencing slowdowns caused by the pandemic.(14) This backlog and the resulting delays became the subject of a federal lawsuit, along with requests to review other witnessing and identification requirements for absentee voting.

         In that lawsuit, the district court reviewed the request for injunctive relief, finding:

         (a) The plaintiffs demonstrated an irreparable harm and inadequate remedies at law;15

         (b) The burden placed on absentee voters by a quick or late return of ballots was severe;

         (c) The state interest in preserving ballot return deadlines was not compelling enough, where many voters returning ballots relied on the state's...